Kinchion v. Cessna Aircraft Company et al

Filing 90

MEMORANDUM AND ORDER denying 79 Motion for Leave to Amend Complaint; denying 82 Motion for Summary Judgment; granting 83 Motion for Summary Judgment. Signed by District Judge Monti L. Belot on 9/12/2013. (alm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

RONALD K. KINCHION,
Plaintiff,
v.
CESSNA AIRCRAFT COMPANY,

Defendant.

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CIVIL ACTION ACTION
No.

12-1203-MLB

MEMORANDUM AND ORDER
This case comes before the court on cross motions for summary
judgment.

(Docs. 82, 83).

are ripe for decision.

The motions have been fully briefed and

(Docs. 84, 85, 86, 88, 89).

Plaintiff’s

motion is denied and Cessna’s motion is granted for the reasons
herein.
Facts1

I.

Plaintiff Ronald Kinchion worked approximately 15 years at
Cessna

as

a

small-parts

finish

painter.

Plaintiff

worked

in

Department 28, Paint and Processing, prior to his termination.
Plaintiff’s Medical History at Cessna
On May 11, 2007, plaintiff filed a suit against Cessna alleging
disability discrimination and other claims.

Plaintiff and Cessna

entered into a settlement agreement where Cessna agreed to comply with
Kansas law.

1

Plaintiff’s response failed to controvert the facts as required
by D. Kan. 56.1. Therefore, Cessna’s statement of facts is deemed
uncontroverted.

In October and November 2008, plaintiff requested intermittent
FMLA leave which was approved by Cessna.

On February 1, 2011,

plaintiff again requested intermittent leave and the request was
granted. On February 11, 2011, plaintiff reported a cyst on his right
wrist and, subsequently, filed a worker’s compensation claim regarding
the cyst.
On

March

28,

2011,

Kim

Chacon,

an

ergonomist

at

Cessna,

conducted an ergonomic survey of plaintiff in order to determine the
cause of his pain.

During the survey, plaintiff stated that he

prefers to paint with his right hand but is able to paint with both
hands.

Plaintiff informed Chacon that he had pain in both hands and

wrists. Chacon then observed plaintiff while he worked and noted that
plaintiff constantly switched fingers for the trigger and used both
hands to paint.
On April 21, 2011, plaintiff’s doctor placed restrictions on his
right hand which stated that plaintiff could paint occasionally with
his right hand.

The doctor did not restrict work activity with

plaintiff’s left hand.
On September 29, 2011, plaintiff had surgery on his right hand
to correct a work-related injury.
to work with restrictions.

On October 3, plaintiff returned

Plaintiff was prohibited from painting

with his right hand but was able to paint with his left hand for up
to two hours.
Disciplinary Procedure at Cessna
The disciplinary procedure at Cessna contains a maximum of five
steps.

At step 1, employees are given a verbal warning.

employees are given a written reprimand.
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At step 2,

On step 3, an employee is

given a warning in lieu of suspension or the decision maker may skip
the warning step and go directly to step 4, a three-day suspension.
The final step, number 5, is termination.
received the benefit of all five steps.
the

disciplinary

procedure

an

In this case, Kinchion

In assessing which stage of

employee

is

at,

the

employee's

discipline over the previous nine months is taken into account.
Supervisors at Cessna are referred to as “Value Stream Leaders”
(VSLs).

VSLs

have

the

authority

and

discretion

to

discipline

employees, but they also work with Cessna's Human Resources Department
("HR") on employee discipline issues.

VSLs ensure that the employees

under his or her supervision are generating work-product that meets
Cessna's quality expectations.

Employees who fail meet quality

expectations may be subjected to discipline up to and including
termination of their employment.
Plaintiff’s Discipline History
On April 27, 2011, VSL Davis gave plaintiff a verbal warning
about the poor quality of his work after determining that the paint
applied by plaintiff was too thin on approximately 40 parts.
On August 18, 2011, VSL Simmons assigned plaintiff to paint two
parts by using the “fill and drain” method.
of

this

method

and

had

painted

with

the

Plaintiff had knowledge
method

in

the

past.

Plaintiff, however, refused to paint the parts and claimed that he did
not know how to do it.
the method to plaintiff.

Simmons asked other painters to demonstrate
Winesberry, the crew chief, explained the

method to plaintiff and plaintiff painted the parts applying an
excessive amount of primer on the outside of the parts.

Simmons

determined that the parts would not pass inspection and had to be sent
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offsite to be stripped and reprocessed.
Simmons investigated the incident to determine the appropriate
action.

After Simmons concluded that plaintiff had knowledge of the

painting method and reviewed plaintiff’s verbal warning in April 2011,
Simmons gave Kinchion a written reprimand on August 22.

Plaintiff

objected to the reprimand and filed a grievance with the union. After
negotiations, Cessna and the union agreed to allow the reprimand on
plaintiff’s record for only two months, rather than the normal time
period of nine months.
On October 6, 2011, Simmons assigned plaintiff to work in the
painting booth.

At this time, plaintiff was restricted by his

physician from the use of his right hand to paint but was allowed to
paint with his left hand.

Plaintiff, however, objected to painting

in the booth and stated that he could not paint with his left hand.
Simmons told plaintiff that she expected him to work in the both for
two hours as allowed by his restrictions.
worked in the booth and painted the parts.

Ultimately, plaintiff

After reviewing the work,

Simmons determined that plaintiff had applied an excessive amount of
paint which caused drips and “blisters.”

The parts were not usable

and had to be sanded down and repainted.
Simmons investigated the incident for potential disciplinary
action, reviewed plaintiff’s file and spoke with other VSLs at Cessna.
Simmons also checked with Health Services to determine the history of
plaintiff’s work restrictions.

Simmons concluded that plaintiff was

able to paint with his left hand and that plaintiff did not like to
work in the painting booth.

On October 7, 2011, Simmons gave

plaintiff a warning in lieu of suspension.
-4-

On that same day, Simmons again assigned plaintiff to work in
the painting booth and instructed Winesberry to observe and coach
plaintiff.

While observing, Winesberry told plaintiff that he was

applying too much paint.

Plaintiff did not turn the paint gun down

and instead began applying more paint to the parts.

Winesberry

repeated her request to turn down the gun and plaintiff did not
respond. Winesberry left the area and notified Simmons that plaintiff
was severely over-painting the parts.

By that time, plaintiff had

over-painted eighteen out of twenty parts which had to be reworked.
Simmons reported the incident to HR.
Chris Manuel, an HR Manager, investigated the incident by
reviewing plaintiff’s file and interviewing various Cessna employees.
Manuel also interviewed plaintiff who claimed that he did not know how
to

paint

with

his

left

hand.

Plaintiff’s

statement,

however,

conflicted with other reports that indicated plaintiff could paint
with his left hand.

Manuel concluded that plaintiff did know how to

paint with his left hand and therefore, disciplinary action was
appropriate because of the deficient quality of plaintiff’s work.
Simmons also concluded that plaintiff’s actions were intentional.
Plaintiff was given a three-day suspension, which moved him to step
4 of the disciplinary procedure.
On December 19, plaintiff was assigned to paint “gas shocks.”
These parts are visible to the client and must be painted perfectly.
The parts should be hung up or propped up while painting and cannot
be placed in the oven. The parts were designated a “priority 2" which
meant

that

they

were

to

be

worked

on

immediately.

Plaintiff

improperly placed the parts in the oven and painted the parts on a
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rack which resulted in the parts being stuck to the shelving unit.
On December 20, a co-worker told plaintiff that the parts would be
rejected by quality control.

Plaintiff did not immediately repaint

the parts but decided to leave the parts to fix the next day.

The

parts ultimately had to be reworked.
On December 21, Chuck Miller, a crew chief at Cessna, informed
Manuel of plaintiff’s unacceptable painting. Manuel investigated the
incident.

In determining whether to discipline plaintiff, Manuel

reviewed plaintiff’s file which included an investigation by Jennifer
Grindstaff, an HR Manager.

Grindstaff conducted the investigation to

determine whether plaintiff was being subjected to unfair scrutiny by
Simmons.

After interviewing ten employees in plaintiff’s area,

Grindstaff concluded that Simmons treated all employees the same and
that plaintiff was repeatedly disrespectful to Simmons. Additionally,
Grindstaff reported that several employees felt that plaintiff made
the

environment

Grindstaff’s

“toxic.”

report

and

(Doc.
concluded

84

at

that

18).

Manuel

disciplinary

relied
action

on
was

appropriate because of the deficient quality of plaintiff’s work.
Simmons agreed with Manuel’s conclusion.

Because plaintiff was on

step 4, the next step of the procedure was termination.
Manuel and Simmons jointly made the decision to terminate
plaintiff’s employment and received approval from HR.
Plaintiff filed this action against Cessna alleging that Cessna
retaliated against him for filing a worker’s compensation claim,
interfered with his rights under the Family Medical Leave Act (FMLA),
violated the Americans with Disabilities Act (ADA) and breached the
2008 settlement agreement. Both Cessna and plaintiff move for summary
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judgment on all claims.
II.

Summary Judgment Standard
The rules applicable to the resolution of this case, now at the

summary judgment stage, are well-known and are only briefly outlined
here.

Federal Rule of Civil Procedure 56(c) directs the entry of

summary judgment in favor of a party who "show[s] that there is no
genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c).

An issue is “genuine” if sufficient evidence exists so that a rational
trier of fact could resolve the issue either way and an issue is
“material” if under the substantive law it is essential to the proper
disposition of the claim.

Adamson v. Multi Community Diversified

Svcs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008).

When confronted

with a fully briefed motion for summary judgment, the court must
ultimately determine "whether there is the need for a trial–whether,
in other words, there are any genuine factual issues that properly can
be resolved only by a finder of fact because they may reasonably be
resolved in favor of either party."
477 U.S. 242, 250 (1986).
judgment.

Anderson v. Liberty Lobby, Inc.,

If so, the court cannot grant summary

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

III. Pro Se Standard
Before analyzing Cessna’s motion for summary judgment, the court
notes plaintiff is not represented by counsel.
rule

that

pro

se

pleadings,

including

It has long been the

complaints

and

pleadings

connected with summary judgment, must be liberally construed.

See

Hall v. Bellmon, 935 F.2d 1106, 1110 & n.3 (10th Cir. 1991); Hill v.
Corrections Corp. of America, 14 F. Supp.2d 1235, 1237 (D. Kan. 1998).
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This rule requires the court to look beyond a failure to cite proper
legal authority, confusion of legal theories, and poor syntax or
sentence

construction.

See

Hall,

935

F.2d

at

1110.

Liberal

construction does not, however, require this court to assume the role
of advocate for the pro se litigant.

See id.

Plaintiff is expected

to construct his own arguments or theories and adhere to the same
rules of procedure that govern any other litigant in this district.
See id.; Hill, 14 F. Supp.2d at 1237.
IV.

Analysis
A.

Workers’ Compensation

Plaintiff asserts that he was terminated in retaliation for
filing a workers’ compensation claim.

The elements for a claim of

retaliatory discharge are:
(1) The plaintiff filed a claim for workers
compensation benefits or sustained an injury for which he
or she might assert a future claim for such benefits; (2)
the employer had knowledge of the plaintiff's workers
compensation claim injury; (3) the employer terminated the
plaintiff's employment; and (4) a causal connection existed
between the protected activity or injury and the
termination.
Rebarchek v. Farmers Co-op. Elevator, 272 Kan. 546, 553-54, 35 P.3d
892, 898-99 (2001).
After plaintiff establishes a prima facie case, the burden shifts
to Cessna to show an articulate, non-retaliatory reason for the
discharge.

Bausman v. Interstate Brands Corp., 252 F.3d 1111, 1116

(10th Cir. 2001).

"If the employer meets this burden, the burden

shifts back to the plaintiff but the plaintiff must show clear and
convincing evidence that he or she was terminated in retaliation for
exercising rights under the Workers' Compensation Act."

-8-

Id.

The first three elements are not in dispute.

Plaintiff filed a

workers’ compensation claim in February 2011 and was terminated in
January 2012.

To establish the fourth element, a plaintiff typically

shows proximity in time between the claim and discharge. Close
temporal proximity between a workplace injury or the filing of a
workers compensation claim and the adverse employment action may be
"highly persuasive evidence of retaliation."

White v. Tomasic, 31

Kan. App.2d 597, 602, 69 P.3d 208, 212 (2003) (internal citations
omitted).

In this case, there was an eleven-month delay between

plaintiff’s claim and his firing.

The court finds that the delay

between plaintiff’s claim and his termination is not sufficient to
establish a causal connection.

Anderson v. Coors Brewing Co., 181

F.3d 1171, 1179 (10th Cir. 1999)(twelve weeks is not sufficient).
Plaintiff has not offered any additional circumstantial evidence to
show that he was fired because he filed a workers’ compensation claim.
Therefore, summary judgment on this claim is granted in favor of
Cessna.
Even if the court determined that plaintiff met his prima facie
case, plaintiff cannot establish retaliation under the burden-shifting
approach set forth in Rebarchek. Cessna has established by sufficient
evidence that its non-retaliatory legitimate reason for terminating
plaintiff was his failure to perform his job satisfactorily.

Since

Cessna has carried its “burden of production, the presumption raised
by the prima facie case is rebutted, [and] drops from the case.”
Robinson v. Wilson Concrete Co., 913 F. Supp. 1476, 1483 (D. Kan.
1996).

The burden now returns to plaintiff.

Plaintiff has simply failed to provide an adequate response.
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“Timing alone, without any other evidence of retaliation, does not
comport with the standard of proof for a retaliatory discharge claim
in Kansas.”

Id. at 1484.

Cessna’s motion for summary judgment on plaintiff’s claim for
workers’ compensation retaliatory discharge is therefore granted and
plaintiff’s motion is denied.
B.

FMLA Claims

Liberally construing plaintiff’s allegations, plaintiff brings
claims for FMLA interference and retaliation pursuant to 29 U.S.C. §
2615(a)(1) and (a)(2), respectively.

The FMLA affords a qualified

employee twelve weeks of unpaid leave each year for serious health
problems that prevent the employee from performing his job. 29 U.S.C.
§ 2612(a)(1)(D).
An employee may recover damages against the employer when it has
interfered with the right to medical leave or reinstatement following
medical leave.

29 U.S.C. § 2615; Smith v. Diffee Ford-Lincoln

-Mercury, Inc., 298 F.3d 955, 960 (10th Cir. 2002).
To make out a prima facie claim for FMLA interference, a
plaintiff must establish (1) that he was entitled to FMLA
leave, (2) that some adverse action by the employer
interfered with his right to take FMLA leave, and (3) that
the employer's action was related to the exercise or
attempted exercise of his FMLA rights.
Jones, 427 F.3d at 1319.
To state a prima facie case of retaliation, [a plaintiff]
must show that: (1) he engaged in a protected activity; (2)
[the defendant] took an action that a reasonable employee
would have found materially adverse; and (3) there exists
a causal connection between the protected activity and the
adverse action.
Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1171 (10th
Cir. 2006).
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Interference
Plaintiff alleges that Cessna interfered with his right to
reinstatement due to his excessive FMLA absences.

(Doc. 64 at ¶ 84).

“In order to satisfy the second element of an interference claim, the
employee must show that [he] was prevented from taking the full 12
weeks' of leave guaranteed by the FMLA, denied reinstatement following
leave, or denied initial permission to take leave.”

Campbell v.

Gambro Healthcare, Inc., 478 F.3d 1282, 1287 (10th Cir. 2007).

The

facts in this case do not support any of those scenarios. Plaintiff’s
request for leave was granted and he clearly exhausted the full twelve
weeks of leave available to him.

(Doc. 84, exh. 1F at 5).

Plaintiff

also cannot show that he was denied reinstatement following leave
because he was not on FMLA leave at the time of his termination.
Therefore, plaintiff has failed to establish that Cessna interfered
with his right to take FMLA leave.

Cessna’s motion for summary

judgment on this claim is granted and plaintiff’s motion is denied.
Retaliation
With

respect

to

the

retaliation

claim,

Cessna

argues

that

plaintiff cannot establish a causal connection between plaintiff’s
leave and the termination because plaintiff’s leave occurred more than
three years ago.

(Doc. 84 at 26-28).

Cessna is incorrect, plaintiff

was approved for intermittent leave in 2011 and did take FMLA leave
as late as October 2011, when it was exhausted.

(Doc. 84, exh. 1F).

Notably, the disciplinary actions taken by Cessna coincide with
plaintiff’s FMLA leave on at least two occasions.

Id. at 3-4.

Therefore, a close temporal proximity exists between plaintiff’s leave
and his disciplinary actions.

Nealey v. Water District No. 1 of
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Johnson County, No. 08-3144, 2009 WL 1303161 (10th Cir. May 12, 2009).
The burden now shifts to Cessna to establish a legitimate nondiscriminatory

reason

for

plaintiff’s

termination.

As

stated

previously, Cessna has satisfied its burden to articulate a legitimate
reason for its actions.

As a result, plaintiff must show pretext.

Although temporal proximity is to be considered in determining whether
Cessna’s explanation is a pretext for retaliation, the Tenth Circuit
has refused to allow even “very close temporal proximity to operate
as

a

proxy

for

th[e]

demonstrate pretext.

evidentiary

requirement”

that

plaintiff

Annett v. Univ. of Kan., 371 F.3d 1233, 1241

(10th Cir. 2004); Medina v. Income Support Div., 413 F.3d 1131, 1138
(10th Cir. 2005) (“[Temporal proximity] is not alone sufficient to
defeat summary judgment.”) (quotations omitted).

“To raise a fact

issue of pretext,” plaintiff must “present evidence of temporal
proximity

plus

circumstantial

evidence

of

retaliatory

motive.”

Metzler v. Federal Home Loan Bank of Topeka, 464 F.3d 1164, 1172 (10th
Cir. 2006).

Here, plaintiff offers no circumstantial evidence to

support a finding of retaliatory motive.
Therefore, Cessna’s motion for summary judgment is granted and
plaintiff’s motion is denied.
C.

ADA Discrimination

The framework articulated in McDonnell Douglas controls the
analysis of plaintiff's disability discrimination claim. See Johnson
v.

Weld

County,

Accordingly,

Colo.,

plaintiff

594
must

F.3d
first

1202,

1217

establish

(10th
a

Cir.

genuine

2010).

issue

of

material fact exists on the following three elements: “(1) [he] is a
disabled person as defined by the ADA; (2) [he] is qualified, with or
-12-

without reasonable accommodation, to perform the essential functions
of the job held or desired; and (3) [his] employer discriminated
against [him] because of [his] disability.”

Id.

In the amended complaint, plaintiff has alleged that he has
diabetes, cardiac dysrhythmia, mitral valve prolapse, irritable bowel
syndrome and diabetic neuropathy.

(Doc. 64 at 6).

The regulations

provide that diabetes will, “in virtually all cases” result in a
finding

of

a

disability,

making
and

necessary

individualized

assessment

“particularly

1630.2(3).

Plaintiff, however, offers no evidence of his symptoms or

his conditions.

simple

the

straightforward.”

29

C.F.R.

The medical records in this case concern plaintiff’s

surgery and limitations in his hands. Therefore, plaintiff has failed
to establish that he is a disabled person as defined by the ADA.
Moreover, plaintiff has not produced any evidence to satisfy the
third element of ADA discrimination.

“[T]o establish the third

element of a prima facie case of disability discrimination, the
plaintiff

must

show

that

[he]

was

terminated

because

of

[his]

disability, or that the employer terminated the plaintiff ‘under
circumstances which give rise to an inference that the termination was
based on [his] disability.’”

Butler v. City of Prairie Village,

Kan., 172 F.3d 736, 748 (10th Cir. 1999) (citing Morgan v. Hilti,
Inc., 108 F.3d 1319, 1323 (10th Cir. 1997)).

The third prong of the

test does not impose an “onerous” burden, but it also is “not empty
or perfunctory.”
“to

present

Morgan, 108 F.3d at 1323–24. Plaintiff is required

some

affirmative

evidence

that

disability

was

a

determining factor in the employer's decision.” Id.
Plaintiff has failed to offer any affirmative evidence that his
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diabetes, or the other conditions listed in the amended complaint,
were determining factors in Cessna's employment decision.
v. Hilti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).

See Morgan

Accordingly,

plaintiff has not established the third element of his prima facie
case and summary judgment is appropriate on this basis, regardless of
whether plaintiff has a “disability” within the meaning of the ADA.
Cessna’s

motion

for

summary

judgment

on

plaintiff’s

ADA

discrimination claim is granted and plaintiff’s motion is denied.
D.

Breach of Contract

Finally,

plaintiff

alleges

that

Cessna

breached

the

2008

settlement agreement because it has not complied with Kansas law.

In

order to state a claim for breach of contract under Kansas law,
plaintiff must establish the following elements:
of

a

contract

between

the

parties;

(2)

(1) the existence

consideration;

(3)

the

plaintiff's performance or willingness to perform in compliance with
the contract; (4) defendant's breach of the contract; and (5) that
plaintiff suffered damage caused by the breach.

Britvic Soft Drinks,

Ltd. v. ACSIS Techs., Inc., 265 F. Supp.2d 1179, 1187 (D. Kan. 2003).
Plaintiff has wholly failed to introduce any evidence of a breach
of the settlement agreement.

Therefore, Cessna’s motion for summary

judgment on this claim is granted and plaintiff’s motion is denied.
V.

Conclusion
Cessna’s motion for summary judgment is granted.

Plaintiff’s motion for summary judgment is denied.

(Doc. 83).
(Doc. 82).

Plaintiff’s motion to amend his complaint (Doc. 79) is denied for the
reasons stated in this court’s January 4, 2013, order.

(Doc. 61).

A motion for reconsideration of this order is not encouraged.
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Any such motion shall not exceed 3 double-spaced pages and shall
strictly comply with the standards enunciated by this court in Comeau
v. Rupp, 810 F. Supp. 1172, 1174 (1992).

The response to any motion

for reconsideration shall not exceed 3 double-spaced pages.

No reply

shall be filed.

IT IS SO ORDERED.
Dated this

12th

day of September 2013, at Wichita, Kansas.

s/ Monti Belot
Monti L. Belot
UNITED STATES DISTRICT JUDGE

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